[Federal Register: August 30, 2007 (Volume 72, Number 168)]
[Rules and Regulations]
[Page 50064-50074]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30au07-8]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 20
[WT Docket No. 05-265; FCC No. 07-143]
Reexamination of Roaming Obligations of Commercial Mobile Radio
Service Providers
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Communications Commission (FCC)
clarifies by final rule that automatic roaming is a common carrier
obligation for commercial mobile radio service (CMRS) carriers,
requiring them to provide roaming services to other carriers upon
reasonable request and on a just, reasonable, and non-discriminatory
basis.
DATES: This rule is effective October 29, 2007.
FOR FURTHER INFORMATION CONTACT: Christina Clearwater at (202) 418-
1893, Christina.Clearwater@fcc.gov, Spectrum and Competition Policy
Division, Wireless Telecommunications Bureau; Won Kim at (202) 418-
1368, Won.Kim@fcc.gov, Spectrum and Competition Policy Division,
Wireless Telecommunications Bureau.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order, WT Docket No. 05-265, FCC No. 07-143, adopted August 7, 2007
and released August 16, 2007. The full text of the Report and Order is
available for public inspection on the Commission's Internet site at
http://www.fcc.gov. It is also available for inspection and copying
during regular business hours in the FCC Reference Center (CY-A257),
445 12th Street, SW., Washington, DC 20554. The full text of this
document also may be purchased from the Commission's duplication
contractor, Best Copy and Printing Inc., Portals II, 445 12th Street,
SW., Room CY-B402, Washington, DC 20554; telephone (202) 488-5300; fax
(202) 488-5563; e-mail FCC@BCPIWEB.COM.
Final Paperwork Reduction Act of 1995 Analysis
The Report and Order does not contain an information collection
subject to the Paperwork Reduction Act of 1995, and therefore does not
contain any new or modified ``information collection burden for small
business concerns with fewer than 25 employees,'' pursuant to the Small
Business Paperwork Relief Act of 2002.
Synopsis
1. In this Report and Order, the Commission finds that automatic
roaming is a common carrier obligation pursuant to Sections 201 and 202
of the Communications Act, and discusses the scope of the automatic
roaming obligation for commercial mobile radio service (CMRS) carriers.
The Commission also declines to regulate the automatic roaming rates
and addresses other issues raised by commenters in the record,
including a request for ``most favored'' roaming partner rates for Tier
IV CMRS carriers, in-market or home roaming issues, access to non-
interconnected features and enhanced digital networks, and public
filing of roaming rates. Finally, the Commission codifies the automatic
roaming obligations into a rule, imposing an affirmative obligation to
provide automatic roaming on CMRS carriers under certain conditions,
denies the petition for investigation pursuant to Section 403 of the
Act, and declines to sunset the existing manual roaming rule at this
time.
2. The Commission believes its findings and clarifications in this
Report and Order with respect to CMRS providers' obligations regarding
roaming services serve the public interest and safeguard wireless
consumers' reasonable expectations of receiving seamless nationwide
commercial mobile telephony services through roaming.
A. Automatic Roaming Obligations
1. Automatic Roaming
3. The Commission clarifies that automatic roaming is a common
carrier service, subject to the protections outlined in Sections 201
and 202 of the Communications Act. If a CMRS carrier receives a
reasonable request for automatic roaming, pursuant to Section
332(c)(1)(B) and Section 201(a), it is desirable and serves the public
interest for that CMRS carrier to provide automatic roaming service on
reasonable and non-discriminatory terms and conditions. Services that
are covered by the automatic roaming obligation are limited to real-
time, two-way switched voice or data services, provided by CMRS
carriers, that are interconnected with the public switched network and
utilize an in-network switching facility that enables the provider to
reuse frequencies and accomplish seamless hand-offs of subscriber
calls. These findings are consistent with the Commission's previous
determinations.
4. Roaming is a common carrier service, because roaming capability
gives end users access to a foreign network in order to communicate
messages of their own choosing, as previously determined in CC Docket
No. 94-54, published at 61 FR 44026, August 27, 1996.\1\ In finding
that roaming is a common carrier service, the Commission noted the
contrast between roaming and services such as billing and collection
offered by local exchange carriers (LECs) and interexchange carriers
(IXCs), which are not common carriage because they do ``not allow
customers of the service * * * to communicate or transmit intelligence
of their own design and choosing,'' and because they can be offered by
non-communications entities such as credit card companies. The
Commission also found that roaming satisfies all the statutory elements
of commercial mobile radio service, and ``is thus a common carrier
service, because it is (1) an interconnected mobile service (2) offered
for profit (3) in such a manner as to be available to a substantial
portion of the public.'' There are two forms of roaming--manual and
automatic. The Commission finds that both forms of roaming are common
carrier services because both forms of roaming capability give end
users access to a foreign network in order to communicate messages of
their own choosing.
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\1\ See Interconnection and Resale Obligations Pertaining to
Commercial Mobile Radio Services, CC Docket No. 94-54, Second Report
and Order and Third Notice of Proposed Rulemaking, 11 FCC Rcd 9462,
9468-69 Para. 10 (1996) (``Interconnection and Resale Obligations
Second Report and Order'' and ``Interconnection and Resale
Obligations Third NPRM,'' respectively).
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5. Further, under Section 332 of the Communications Act, CMRS
providers are subject to common carrier regulations. Section
332(c)(1)(A) provides that a ``person engaged in the provision of a
service that is a commercial mobile service shall, insofar as such
person is engaged, be treated as a common carrier,'' and Subsection
(c)(1)(B) states that, ``[u]pon reasonable request of any person
providing commercial mobile service, the Commission shall order a
common carrier to establish physical connections with such service
pursuant to the provisions of Section 201 of this Title.'' Like any
other common carrier service offering, if a CMRS provider offers
automatic roaming, it triggers its common carrier obligations with
respect to the provisioning of that service under the Communications
Act. The Commission determines that, if a CMRS carrier receives a
reasonable request for automatic roaming, pursuant to Section
332(c)(1)(B) and Section 201(a), it is desirable and necessary to serve
the
[[Page 50065]]
public interest for that CMRS carrier to provide automatic roaming
service on reasonable and non-discriminatory terms and conditions.
6. Additionally, the Commission determines that a reasonable
request for automatic roaming will be limited to real-time, two-way
switched voice or data services, provided by CMRS carriers, that are
interconnected with the public switched network and utilize an in-
network switching facility that enables the provider to reuse
frequencies and accomplish seamless hand-offs of subscriber calls. This
ensures that all CMRS providers competing in the mass market for real-
time, two-way voice and data services are similarly obligated to
provide automatic roaming services, thereby equally benefiting all
subscribers of mobile telephony services who seek to roam seamlessly
over CMRS networks. The Commission also concludes, as it has in prior
proceedings, that an important indicator of a provider's ability to
compete with other CMRS providers is whether the provider's system has
``in-network'' switching capability. In-network switching facilities
accommodate the reuse of frequencies in different portions of the same
service area, thus enabling any CMRS provider to offer interconnected
service to a larger group of customers and compete directly with other
CMRS providers in the mass consumer market.
7. Complaint Procedures. Based on its finding that automatic
roaming is a common carrier service, the Commission determines that the
provisioning of automatic roaming service is subject to Section 208
which provides that complaints may be filed with the Commission against
common carriers subject to the Communications Act. There has been some
confusion regarding whether the provisioning of automatic roaming
services is subject to the requirements of Section 208. Given the fact-
specific nature of the roaming issues that have come to light during
this proceeding and several merger proceedings, the Commission
concludes that many disputes involving automatic roaming services would
be best resolved through an adjudicatory process. In deciding roaming
complaints, the Commission will consider whether a request is
reasonable or whether the activity complained of is unjust and
unreasonable based on the totality of the circumstances of the case.
When roaming-related complaints are filed, the Commission intends to
address them expeditiously on a case-by-case basis.
8. Further, the Commission notes that the Accelerated Docket
procedure, including pre-complaint mediation, is available to roaming
complaints. Several commenters--including parties both supporting and
opposing adoption of an automatic roaming rule--requested use of the
Commission's Accelerated Docket procedures to resolve roaming
complaints. Although all roaming complaints will not automatically be
placed on the Accelerated Docket, an affected carrier can seek
consideration of its complaint under the Commission's Accelerated
Docket rules and procedures where appropriate.
9. Reasonableness of Automatic Roaming Requests. In order to
provide some guidance as to the reasonableness of automatic roaming
requests under Sections 201(b) and 202(a), the Commission also
establishes several rebuttable presumptions with respect to requests
for automatic roaming and the would-be host carriers' response. The
Commission will presume a request for automatic roaming to be
reasonable, in the first instance, if the requesting CMRS carriers'
network is technologically compatible and the roaming request is for
areas outside of the requesting carrier's home market. As noted above,
to be deemed reasonable, a request for automatic roaming may involve
only those real-time, two-way switched voice or data services that are
interconnected with the public switched network and utilize an in-
network switching facility that enables the provider to reuse
frequencies and accomplish seamless hand-offs of subscriber calls. When
a presumptively reasonable automatic roaming request is made, a would-
be host CMRS carrier has a duty to respond to the request and avoid
actions that unduly delay or stonewall the course of negotiations
regarding that request. For example, following receipt of a reasonable
automatic roaming request, evidence of a would-be host carrier's
refusal to respond at all or a persistent pattern of stonewalling
behavior will likely support a finding of a breach of the would-be host
carrier's automatic roaming obligations.
10. The presumptions and examples of reasonableness cited above are
not exhaustive, but rather are intended to provide some guidance to
parties that may be participating in a Section 208 complaint proceeding
involving roaming services. CMRS carriers may argue that the Commission
should consider other relevant factors in determining whether there is
a violation of the automatic roaming obligations, based on the totality
of the circumstances present in a particular case.
2. Determination Not to Impose Rate Regulation on Roaming Agreements
11. The Commission declines to impose a price cap or any other form
of rate regulation on the fees carriers pay each other when one
carrier's customer roams on another carrier's network. In particular,
the Commission is not persuaded that consumers would be harmed in the
absence of a price cap or some other form of rate regulation. The
Commission believes that the better course, as established in this
Report and Order, is that the rates individual carriers pay for
automatic roaming services be determined in the marketplace through
negotiations between the carriers, subject to the statutory requirement
that any rates charged be reasonable and non-discriminatory.
12. The Commission finds that there is insufficient evidence to
justify regulating the roaming rates of carriers, and that any harm to
consumers in the absence of affirmative regulation in this regard is
speculative. Moreover, with the clarifications it makes herein with
respect to automatic roaming, the Commission finds that consumers are
protected from being harmed by the level and structure of roaming rates
negotiated between carriers. Absent a finding that the existing level
and structure of roaming rates harm consumers, regulation of rates for
automatic roaming service is not warranted.
13. Because it is not persuaded that the existing level and
structure of roaming rates negotiated between carriers harm consumers
of mobile telephony services, the Commission does not need to address
the argument that the state of competition in the intermediate product
market is such as to warrant rate regulation.
14. Based on the foregoing considerations, the Commission concludes
that regulation of roaming rates is not warranted on economic grounds.
In addition, however, the Commission agrees with concerns raised in the
record that rate regulation has the potential to distort carriers'
incentives and behavior with regard to pricing and investment in
network buildout. Capping roaming rates by tying them to a benchmark
based on larger carriers' retail rates may diminish larger carriers'
incentives to lower retail prices paid by their customers, and perhaps
even give them an incentive to raise retail rates. At the same time, by
requiring larger carriers to offer national roaming coverage to their
competitors' customers at nearly the same rates offered to their own
customers, this form of rate
[[Page 50066]]
regulation may also give smaller regional carriers an incentive to
reduce, or even eliminate, the discounts they offer on regional calling
plans, thereby driving up the prices regional subscribers pay for calls
within their plan's calling area.
15. Similarly, regulation to reduce roaming rates has the potential
to deter investment in network deployment by impairing buildout
incentives facing both small and large carriers. By enabling smaller
regional carriers to offer their customers national roaming coverage at
more favorable rates without having to build a nationwide network, rate
regulation would tend to diminish smaller carriers' incentives to
expand the geographic coverage of their networks. In addition, by
reducing or eliminating any competitive advantage gained as a result of
building out nationwide or large regional networks, rate regulation
would impair larger carriers' incentives to expand, maintain, and
upgrade their existing networks.
B. Other Issues
1. ``Most Favored'' Roaming Partner Rates for Tier IV CMRS Providers
16. Since the Commission's determination that automatic roaming is
common carrier service applies to all CMRS providers regardless of
size, it declines to create a special Tier IV category for roaming
services. The Commission also declines to adopt a rule requiring that
large nationwide carriers offer the same roaming arrangements to Tier
IV providers as they offer to their ``most favored'' roaming partners.
17. Because the need for automatic roaming services may not always
be the same, and the value of roaming services may vary across
different geographic markets due to differences in population and other
factors affecting the supply and demand for roaming services, it is
likely that automatic roaming rates will reasonably vary. Mobile
services in the United States are differentiated based on price, as
well as non-price attributes, including geographic coverage.
Competition between mobile telephone pricing plans that are
differentiated in these ways benefits consumers by allowing them to
choose pricing plans that offer the best deal on the types of services
they use most frequently. Mandating that a subcategory of CMRS carriers
(i.e., Tier IV providers) are entitled to the same rates as ``most
favored'' roaming partners and imposing this obligation on certain
large CMRS carriers, without a clear demonstration of why such a
requirement would serve the public interest, would distort competitive
market conditions, resulting in unjust and unreasonable practices and
discriminatory treatments.
18. Accordingly, the Commission declines to mandate that a
subcategory of CMRS carriers (i.e., Tier IV providers) be entitled to
the same rates as ``most favored'' roaming partners. The Commission
similarly declines to impose such an obligation on only certain larger
CMRS carriers. Instead, the Commission believes that its finding that
automatic roaming rule is a common carrier service subject to
provisions of Sections 201, 202 and 208 of the Communications Act and
guidance as to rebuttable presumptions establishing the reasonableness
of an automatic roaming request provide small CMRS carriers with an
effective mechanism for recourse against unjust and unreasonable
practices.
2. In-Market or Home Roaming
19. The Commission determines that the automatic roaming obligation
does not include an in-market or home roaming requirement. The
Commission is not requiring a CMRS carrier to provide automatic roaming
to a requesting CMRS carrier in a market where the CMRS carrier
directly competes with the requesting CMRS carrier. Specifically, a
CMRS carrier is not required to provide automatic roaming to a
requesting CMRS carrier where the requesting CMRS carrier holds a
wireless license or spectrum usage rights (e.g., spectrum leases) in
the same geographic location as the would-be host CMRS carrier. In
geographic areas outside of these overlapping areas or markets,
however, a host carrier must comply with the Commission's automatic
roaming requirement and provide this service in a manner consistent
with the common carrier obligations of Sections 201 and 202 of the
Communications Act.
20. The Commission finds that an automatic roaming request in the
home area of a requesting CMRS carrier, the area where the requesting
CMRS carrier has the spectrum to compete directly with the would-be
host carrier, does not serve the Commission's public interest goals of
encouraging facilities-based service and supporting consumer
expectations of seamless coverage when traveling outside the home area.
The Commission finds that if a carrier is allowed to ``piggy-back'' on
the network coverage of a competing carrier in the same market, then
both carriers lose the incentive to build out into high cost areas in
order to achieve superior network coverage. This conclusion, however,
should not be construed as prohibiting a requesting carrier from
seeking to negotiate a roaming agreement including such terms if
desired, or a host carrier from providing a requesting CMRS carrier
with in-market or home roaming should it chose to do so. The Commission
continues to encourage all CMRS carriers to negotiate desired terms and
conditions of automatic roaming agreements, including automatic roaming
in overlapping geographic markets.
21. For purposes of this exclusion from automatic roaming
obligations, in-market or home roaming is defined as any geographic
location where the would-be host carrier and the requesting CMRS
carrier have wireless licenses or spectrum usage rights that could be
used to provide CMRS that cover or overlap the same geographic
location(s). Within these overlapping geographic areas, the would-be
host carrier is not required to comply with an automatic roaming
request. This in-market or home roaming exclusion does not depend on
the level of service the requesting CMRS carrier is providing in the
overlapping geographic area. The exclusion applies regardless of
whether the requesting CMRS carrier is providing no service, limited
service, or state-of-the-art service.
22. Finally, the Commission also determines that the automatic
roaming obligation under Sections 201 and 202 and the home roaming
exclusion are not intended to resurrect CMRS resale obligations. CMRS
resale entails a reseller's purchase of CMRS service provided by a
facilities-based CMRS carrier in order to provide resold service within
the same geographic market as the facilities-based CMRS provider. The
Commission notes that its mandatory resale rule was sunset in 2002, and
automatic roaming obligations can not be used as a backdoor way to
create de facto mandatory resale obligations or virtual reseller
networks.
3. Access to Certain Data Features and Enhanced Digital Networks
(a) Access to Push-to-Talk, Text Messaging (SMS) and Non-Interconnected
Data Features
23. As discussed above, the scope of automatic roaming services
includes only services offered by CMRS carriers that are real-time,
two-way switched voice or data services that are interconnected with
the public switched network and utilize an in-network switching
facility that enables providers to reuse frequencies and accomplish
seamless hand-offs of subscriber calls. The Commission finds that it
would serve the public interest to extend automatic roaming obligations
to push-
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to-talk and SMS. The Commission declines at this time, however, to
adopt a rule extending the automatic roaming obligation beyond that to
offerings that do not fall within the scope of the automatic roaming
services' definition, such as non-interconnected services or features.
24. With respect to push-to-talk and SMS, the Commission notes that
such offerings are typically bundled as a feature on the handset with
other CMRS services, such as real-time, two-way switched mobile voice
or data, that are interconnected with the public switched network.
Provision of these features differs from one carrier to another, i.e.,
push-to-talk and SMS are interconnected features or services in some
instances, but non-interconnected in others, depending on the
technology and network configuration chosen by the carriers. The
Commission is also aware that consumers consider push-to-talk and SMS
as features that are typically offered as adjuncts to basic voice
services, and expect the same seamless connectivity with respect to
these features and capabilities as they travel outside their home
network service areas. For these reasons, the Commission finds that it
is in the public interest to impose an automatic roaming obligation on
push-to-talk and SMS offerings, subject to several provisos. Namely,
the requesting carrier must offer push-to-talk and SMS to its
subscribers on its own home network; push-to-talk and SMS roaming must
be technically feasible; and any changes to the would-be host carrier's
network that are necessary to accommodate push-to-talk and SMS roaming
requests must be economically reasonable.
25. With respect to non-interconnected features or services, the
Commission finds that the record in this proceeding lacks a clear
showing that it is in the public interest at this time to impose an
automatic roaming obligation. While proponents of unrestricted data
roaming have argued that requiring roaming access to the non-
interconnected features of a competitor's network would benefit
consumers by providing greater availability for data features that are
increasingly used by consumers, opponents are concerned that that it
might undercut incentives to differentiate products and could chill
innovation. These opponents claim that extending roaming to non-
interconnected features of a competitors' network may also adversely
affect business decisions to build out facilities for facilities-based
competition and reduce the incentives to access the spectrum through
other means such as initial spectrum licensing or secondary markets. In
light of these diverse views, the Commission believes it is in the
public interest, however, to examine the issue of automatic roaming for
non-interconnected features or services through a Further Notice of
Proposed Rulemaking (FNPRM).
(b) Access to Enhanced Digital Networks
26. As previously explained, the automatic roaming obligation
applies to real-time, two-way switched voice or data services that are
interconnected with the public switched network and utilize an in-
network switching facility that enables providers to reuse frequencies
and accomplish seamless hand-offs of subscriber calls. As discussed
above with respect to non-interconnected services, the Commission
similarly declines at this time to extend the scope of the automatic
roaming services definition to include non-interconnected services
provided over enhanced digital networks, such as wireless broadband
Internet access. The Commission finds that automatic roaming, as a
common carrier obligation, does not extend to services that are
classified as information services or to other wireless services that
are not CMRS.
27. While the Commission finds that, based on the current record,
it is premature to impose any roaming obligation regarding enhanced
data services that are not CMRS and not interconnected to the public
switched network, the Commission will examine this matter further in
the FNPRM.
4. Public Filing of Roaming Rates
28. The Commission declines to impose an affirmative obligation on
CMRS carriers to post their roaming rates. As is generally the case
with commercial agreements, roaming agreements are confidential and
filing them would impose administrative costs on the carriers. In light
of its adoption of an automatic roaming rule as discussed below, the
Commission finds that the available remedies for redress are sufficient
to address disputes that may arise.
C. Codification of Automatic Roaming Obligations
29. The Commission codifies the automatic roaming obligations of
CMRS carriers into a rule requiring that they provide automatic roaming
to any requesting technologically compatible CMRS carrier outside of
the requesting CMRS carrier's home market on reasonable and
nondiscriminatory terms and conditions. This rule applies to CMRS
carriers that offer real-time, two-way switched voice or data service
over digital network that is interconnected with the public switched
network and utilize an in-network switching facility that enables the
provider to reuse frequencies and accomplish seamless hand-offs of
subscriber calls. The Commission also notes that codification of an
automatic roaming obligation gives CMRS carriers another avenue to
redress roaming disputes, benefiting mobile telephony subscribers.
30. Finally, the Commission clarifies that automatic roaming,
pursuant to Sections 201 and 202, as a common carrier obligation
applies to CMRS carriers' analog networks. The Commission does not
find, however, that it is necessary to codify this obligation into a
specific rule. With the sunset of the analog service requirement on
February 18, 2008, there would be little benefit to a codified
automatic roaming rule for analog networks that might potentially apply
between now and that date. Individual carriers may, of course, enter
into automatic roaming agreements for their analog networks, and any
allegations that particular practices on analog networks are unjust,
unreasonable or otherwise in violation of Sections 201 and 202 of the
Communications Act would be subject to the complaint process of Section
208 of the Communications Act.
D. Petition for Investigation Pursuant to Section 403 of the Act
31. Because the Commission finds that the record is sufficient to
codify automatic roaming obligations of CMRS carriers, the Commission
denies the Joint Petition for Investigation Pursuant to Section 403,
which petitioners contend will assist the Commission in gathering
necessary information to support the adoption of an automatic roaming
rule.
E. Manual Roaming
32. The Commission declines to sunset its existing manual roaming
rule and, instead, retains it as a safety net for consumers. The
Commission is aware that as automatic roaming becomes increasingly
ubiquitous, it will render the need for manual roaming obsolete. The
Commission notes, however, that the record demonstrates that automatic
roaming is not available in certain instances today and, therefore, the
continuing utility of the manual roaming rule in the immediate future
is not completely obviated. For this reason, the Commission retains the
manual roaming rule as a safety net to ensure that subscribers can
initiate a wireless call when they are outside of their service area
through manual
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roaming if there is no automatic roaming agreement in place.
Final Regulatory Flexibility Analysis
33. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA),\2\ an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the NPRM in WT Docket No. 05-265, published at 70 FR
56612, September 28, 2005.\3\ The Commission sought written public
comment on the proposals in the NPRM, including comment on the IRFA.
This present Final Regulatory Flexibility Analysis (FRFA) conforms to
the RFA.\4\
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\2\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), Pub. L. 104-121, Title II, 110 Stat. 857 (1996).
\3\ See In the Matter of Reexamination of Roaming Obligations of
Commercial Mobile Radio Service Providers, Automatic and Manual
Roaming Obligations Pertaining to Commercial Mobile Radio Services,
Memorandum Opinion & Order and Notice of Proposed Rulemaking, WT
Docket No. 05-265, 20 FCC Rcd 15047, 15068 App. (2005) (``MO&O'' and
``NPRM,'' respectively).
\4\ See 5 U.S.C. 604.
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A. Need for, and Objectives of, the Report and Order
34. In the Report and Order, with regard to commercial services,
the Commission takes an affirmative step to facilitate the provision of
wireless services to consumers, especially those in rural areas, and to
clarify its rules related to roaming. The Commission clarifies that
automatic roaming is a common carrier obligation for CMRS carriers,
requiring them to provide roaming services to other carriers upon
reasonable request and on a just, reasonable, and non-discriminatory
basis pursuant to Sections 201 and 202 of the Communications Act. The
Commission reiterates its earlier determination that roaming is a
common carrier service because roaming capability gives end users
access to a foreign network in order to communicate messages of their
own choosing. Thus, the provision of roaming is subject to the
requirements of Section 201, 202, and 208 of the Communications Act.\5\
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\5\ See Reexamination of Roaming Obligations of Commercial
Mobile Radio Service Providers, Automatic and Manual Roaming
Obligations Pertaining to Commercial Mobile Radio Services, WT
Docket No. 05-265, Memorandum Opinion & Order and Notice of Proposed
Rulemaking, 20 FCC Rcd 15047, 15048 para. 2 (2005) (``Reexamination
NPRM''); Interconnection and Resale Obligations Pertaining to
Commercial Mobile Radio Services, CC Docket No. 94-54, Second Report
and Order and Third Notice of Proposed Rulemaking, 11 FCC Rcd 9462,
9463-71 paras. 1-14 (1996) (``Interconnection and Resale Obligations
Second Report and Order'' and ``Interconnection and Resale
Obligations Third NPRM,'' respectively). See also 47 CFR 20.15.
Section 332(c)(1) of the Act provides that a person engaged in the
provision of a service that is a commercial mobile service shall be
treated as a common carrier for purposes of the Act. See 47 U.S.C.
332(c)(1).
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35. The Commission also finds that the common carrier obligation to
provide roaming extends to services that are real-time, two-way
switched voice or data service that are interconnected with the public
switched network and utilize an in-network switching facility that
enables the provider to reuse frequencies and accomplish seamless hand-
offs of subscriber calls. The Commission notes that roaming, as a
common carrier obligation, does not extend to services that are
classified as information services or to services that are not CMRS.\6\
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\6\ Appropriate Regulatory Treatment for Broadband Access to the
Internet Over Wireless Networks, Declaratory Ruling, FCC No. 07-30,
paras. 11-12 (rel. Mar. 23, 2007) (``Wireless Broadband Internet
Access Declaratory Ruling'').
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36. The Commission recognizes that today CMRS consumers
increasingly rely on mobile telephony services and they reasonably
expect to continue their wireless communications even when they are out
of their home network area. Thus, the findings in this Report and Order
with respect to CMRS providers' obligations regarding roaming services
serve the public interest and safeguard wireless consumers' reasonable
expectations of seamless continuous nationwide commercial mobile
telephony services through roaming. The Commission also declines to
sunset the existing manual roaming requirement at this time to provide
additional flexibility for consumers.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
37. There were no comments filed specifically in response to the
IRFA.
C. Description and Estimate of the Number of Small Entities to Which
Rules Will Apply
38. The RFA directs agencies to provide a description of, and,
where feasible, an estimate of, the number of small entities that may
be affected by the proposed rules, if adopted.\7\ The RFA generally
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' \8\ In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act.\9\ A ``small business concern'' is one
which: (1) Is independently owned and operated; (2) is not dominant in
its field of operation; and (3) satisfies any additional criteria
established by the Small Business Administration (SBA).\10\
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\7\ 5 U.S.C. 604(a)(3).
\8\ 5 U.S.C. 601(6).
\9\ 5 U.S.C. 601(3) (incorporating by reference the definition
of ``small-business concern'' in the Small Business Act, 15 U.S.C.
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a
small business applies ``unless an agency, after consultation with
the Office of Advocacy of the Small Business Administration and
after opportunity for public comment, establishes one or more
definitions of such term which are appropriate to the activities of
the agency and publishes such definition(s) in the Federal
Register.''
\10\ 15 U.S.C. 632.
---------------------------------------------------------------------------
39. In the following paragraphs, the Commission further describes
and estimates the number of small entity licensees that may be affected
by the rules the Commission adopts in this Report and Order. The
Commission's finding that automatic roaming is a common carrier service
subject to protections outlined in Sections 201, 202 and 208 of the Act
affects all CMRS carriers that provide real-time, two-way switched
voice or data service that are interconnected with the public switched
network and utilize an in-network switching facility that enables the
provider to reuse frequencies and accomplish seamless hand-offs of
subscriber calls. Such carriers are obligated to provide automatic
roaming. As a common carrier obligation, the automatic roaming rule
does not extend to non-interconnected services/features or services
that are classified as information services or to services that are not
CMRS.
40. Since this Report and Order applies to multiple services, this
FRFA analyzes the number of small entities affected on a service-by-
service basis. When identifying small entities that could be affected
by the Commission's new rules, this FRFA provides information that
describes auctions results, including the number of small entities that
were winning bidders. However, the number of winning bidders that
qualify as small businesses at the close of an auction does not
necessarily reflect the total number of small entities currently in a
particular service. The Commission does not generally require that
licensees later provide business size information, except in the
context of an assignment or a transfer of control application that
involves unjust enrichment issues.
41. Wireless Service Providers. The SBA has developed a small
business size standard for wireless firms within the two broad economic
census categories of ``Paging''\11\ and ``Cellular and Other Wireless
[[Page 50069]]
Telecommunications.'' \12\ Under both categories, the SBA deems a
wireless business to be small if it has 1,500 or fewer employees. For
the census category of Paging, Census Bureau data for 2002 show that
there were 807 firms in this category that operated for the entire
year.\13\ Of this total, 804 firms had employment of 999 or fewer
employees, and three firms had employment of 1,000 employees or
more.\14\ Thus, under this category and associated small business size
standard, the majority of firms can be considered small. For the census
category of Cellular and Other Wireless Telecommunications, Census
Bureau data for 2002 show that there were 1,397 firms in this category
that operated for the entire year.\15\ Of this total, 1,378 firms had
employment of 999 or fewer employees, and 19 firms had employment of
1,000 employees or more.\16\ Thus, under this second category and size
standard, the majority of firms can, again, be considered small.
---------------------------------------------------------------------------
\11\ 13 CFR 121.201, NAICS code 517211.
\12\ 13 CFR 121.201, NAICS code 517212.
\13\ U.S. Census Bureau, 2002 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form of
Organization,'' Table 5, NAICS code 517211 (issued Nov. 2005).
\14\ Id. The census data do not provide a more precise estimate
of the number of firms that have employment of 1,500 or fewer
employees; the largest category provided is for firms with ``1000
employees or more.''
\15\ U.S. Census Bureau, 2002 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form of
Organization,'' Table 5, NAICS code 517212 (issued Nov. 2005).
\16\ Id. The census data do not provide a more precise estimate
of the number of firms that have employment of 1,500 or fewer
employees; the largest category provided is for firms with ``1000
employees or more.''
---------------------------------------------------------------------------
42. Cellular Licensees. The SBA has developed a small business size
standard for small businesses in the category ``Cellular and Other
Wireless Telecommunications.'' \17\ Under that SBA category, a business
is small if it has 1,500 or fewer employees.\18\ For the census
category of ``Cellular and Other Wireless Telecommunications,'' Census
Bureau data for 2002 show that there were 1,397 firms in this category
that operated for the entire year.\19\ Of this total, 1,378 firms had
employment of 999 or fewer employees, and 19 firms had employment of
1,000 employees or more.\20\ Thus, under this category and size
standard, the majority of firms can be considered small.
---------------------------------------------------------------------------
\17\ 13 CFR 121.201, North American Industry Classification
System (NAICS) code 517212.
\18\ Id.
\19\ U.S. Census Bureau, 2002 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form of
Organization,'' Table 5, NAICS code 517212 (issued Nov. 2005).
\20\ Id. The census data do not provide a more precise estimate
of the number of firms that have employment of 1,500 or fewer
employees; the largest category provided is for firms with ``1000
employees or more.''
---------------------------------------------------------------------------
43. Broadband Personal Communications Service. The broadband
Personal Communications Service (PCS) spectrum is divided into six
frequency blocks designated A through F, and the Commission has held
auctions for each block. The Commission has created a small business
size standard for Blocks C and F as an entity that has average gross
revenues of less than $40 million in the three previous calendar
years.\21\ For Block F, an additional small business size standard for
``very small business'' was added and is defined as an entity that,
together with its affiliates, has average gross revenues of not more
than $15 million for the preceding three calendar years.\22\ These
small business size standards, in the context of broadband PCS
auctions, have been approved by the SBA.\23\ No small businesses within
the SBA-approved small business size standards bid successfully for
licenses in Blocks A and B. There were 90 winning bidders that
qualified as small entities in the C Block auctions. A total of 93
``small'' and ``very small'' business bidders won approximately 40
percent of the 1,479 licenses for Blocks D, E, and F.\24\ On March 23,
1999, the Commission reauctioned 155 C, D, E, and F Block licenses;
there were 113 small business winning bidders.\25\ On January 26, 2001,
the Commission completed the auction of 422 C and F PCS licenses in
Auction 35.\26\ Of the 35 winning bidders in this auction, 29 qualified
as ``small'' or ``very small'' businesses. Subsequent events concerning
Auction 35, including judicial and agency determinations, resulted in a
total of 163 C and F Block licenses being available for grant.
---------------------------------------------------------------------------
\21\ See Amendment of Parts 20 and 24 of the Commission's
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile
Radio Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 7850-
7852 paras. 57-60 (1996); see also 47 CFR 24.720(b).
\22\ See Amendment of Parts 20 and 24 of the Commission's
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile
Radio Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 7852
para. 60.
\23\ See Letter to Amy Zoslov, Chief, Auctions and Industry
Analysis Division, Wireless Telecommunications Bureau, Federal
Communications Commission, from Aida Alvarez, Administrator, Small
Business Administration, dated December 2, 1998.
\24\ FCC News, ``Broadband PCS, D, E and F Block Auction
Closes,'' No. 71744 (rel. January 14, 1997).
\25\ See ``C, D, E, and F Block Broadband PCS Auction Closes,''
public notice, 14 FCC Rcd 6688 (WTB 1999).
\26\ See ``C and F Block Broadband PCS Auction Closes; Winning
Bidders Announced,'' public notice, 16 FCC Rcd 2339 (2001).
---------------------------------------------------------------------------
44. Narrowband Personal Communications Service. The Commission held
an auction for Narrowband Personal Communications Service (PCS)
licenses that commenced on July 25, 1994, and closed on July 29, 1994.
A second commenced on October 26, 1994 and closed on November 8, 1994.
For purposes of the first two Narrowband PCS auctions, ``small
businesses'' were entities with average gross revenues for the prior
three calendar years of $40 million or less.\27\ Through these
auctions, the Commission awarded a total of forty-one licenses, 11 of
which were obtained by four small businesses.\28\ To ensure meaningful
participation by small business entities in future auctions, the
Commission adopted a two-tiered small business size standard in the
Narrowband PCS Second Report and Order.\29\ A ``small business'' is an
entity that, together with affiliates and controlling interests, has
average gross revenues for the three preceding years of not more than
$40 million.\30\ A ``very small business'' is an entity that, together
with affiliates and controlling interests, has average gross revenues
for the three preceding years of not more than $15 million.\31\ The SBA
has approved these small business size standards.\32\ A third auction
commenced on October 3, 2001 and closed on October 16, 2001. Here, five
bidders won 317 (MTA and nationwide) licenses.\33\ Three of these
claimed status as a small or very small entity and won 311 licenses.
---------------------------------------------------------------------------
\27\ Implementation of Section 309(j) of the Communications
Act--Competitive Bidding Narrowband PCS, Third Memorandum Opinion
and Order and Further Notice of Proposed Rulemaking, 10 FCC Rcd 175,
196 para. 46 (1994).
\28\ See ``Announcing the High Bidders in the Auction of ten
Nationwide Narrowband PCS Licenses, Winning Bids Total
$617,006,674,'' public notice, PNWL 94-004 (rel. Aug. 2, 1994);
``Announcing the High Bidders in the Auction of 30 Regional
Narrowband PCS Licenses; Winning Bids Total $490,901,787,'' public
notice, PNWL 94-27 (rel. Nov. 9, 1994).
\29\ Amendment of the Commission's Rules to Establish New
Personal Communications Services, Narrowband PCS, Second Report and
Order and Second Further Notice of Proposed Rule Making, 15 FCC Rcd
10456, 10476 para. 40 (2000).
\30\ Id.
\31\ Id.
\32\ See Letter to Amy Zoslov, Chief, Auctions and Industry
Analysis Division, Wireless Telecommunications Bureau, Federal
Communications Commission, from Aida Alvarez, Administrator, Small
Business Administration, dated December 2, 1998.
\33\ See ``Narrowband PCS Auction Closes,'' public notice, 16
FCC Rcd 18663 (WTB 2001).
---------------------------------------------------------------------------
45. Specialized Mobile Radio. The Commission awards ``small
entity'' bidding credits in auctions for Specialized Mobile Radio (SMR)
geographic area licenses in the 800 MHz
[[Page 50070]]
and 900 MHz bands to firms that had revenues of no more than $15
million in each of the three previous calendar years.\34\ The
Commission awards ``very small entity'' bidding credits to firms that
had revenues of no more than $3 million in each of the three previous
calendar years.\35\ The SBA has approved these small business size
standards for the 900 MHz Service.\36\ The Commission has held auctions
for geographic area licenses in the 800 MHz and 900 MHz bands. The 900
MHz SMR auction began on December 5, 1995, and closed on April 15,
1996. Sixty bidders claiming that they qualified as small businesses
under the $15 million size standard won 263 geographic area licenses in
the 900 MHz SMR band. The 800 MHz SMR auction for the upper 200
channels began on October 28, 1997, and was completed on December 8,
1997. Ten bidders claiming that they qualified as small businesses
under the $15 million size standard won 38 geographic area licenses for
the upper 200 channels in the 800 MHz SMR band.\37\ A second auction
for the 800 MHz band was held on January 10, 2002 and closed on January
17, 2002 and included 23 BEA licenses. One bidder claiming small
business status won five licenses.\38\
---------------------------------------------------------------------------
\34\ 47 CFR 90.814(b)(1).
\35\ Id.
\36\ See Letter to Thomas Sugrue, Chief, Wireless
Telecommunications Bureau, Federal Communications Commission, from
Aida Alvarez, Administrator, Small Business Administration, dated
August 10, 1999.
\37\ See ``Correction to Public Notice DA 96-586 `FCC Announces
Winning Bidders in the Auction of 1020 Licenses to Provide 900 MHz
SMR in Major Trading Areas,''' public notice, 18 FCC Rcd 18367 (WTB
1996).
\38\ See ``Multi-Radio Service Auction Closes,'' public notice,
17 FCC Rcd 1446 (WTB 2002).
---------------------------------------------------------------------------
46. The auction of the 1,050 800 MHz SMR geographic area licenses
for the General Category channels began on August 16, 2000, and was
completed on September 1, 2000. Eleven bidders won 108 geographic area
licenses for the General Category channels in the 800 MHz SMR band
qualified as small businesses under the $15 million size standard. In
an auction completed on December 5, 2000, a total of 2,800 Economic
Area licenses in the lower 80 channels of the 800 MHz SMR service were
sold. Of the 22 winning bidders, 19 claimed ``small business'' status
and won 129 licenses. Thus, combining all three auctions, 40 winning
bidders for geographic licenses in the 800 MHz SMR band claimed status
as small business.
47. In addition, there are numerous incumbent site-by-site SMR
licensees and licensees with extended implementation authorizations in
the 800 and 900 MHz bands. The Commission does not know how many firms
provide 800 MHz or 900 MHz geographic area SMR pursuant to extended
implementation authorizations, nor how many of these providers have
annual revenues of no more than $3 million or $15 million (the special
small business size standards), or have no more than 1,500 employees
(the generic SBA standard for wireless entities, discussed, supra). One
firm has over $15 million in revenues. The Commission assumes, for
purposes of this analysis, that all of the remaining existing extended
implementation authorizations are held by small entities.
48. Advanced Wireless Services. In the AWS-1 Report and Order, the
Commission adopted rules that affect applicants who wish to provide
service in the 1710-1755 MHz and 2110-2155 MHz bands.\39\ The AWS-1
Report and Order defines a ``small business'' as an entity with average
annual gross revenues for the preceding three years not exceeding $40
million, and a ``very small business'' as an entity with average annual
gross revenues for the preceding three years not exceeding $15 million.
The AWS-1 Report and Order also provides small businesses with a
bidding credit of 15 percent and very small businesses with a bidding
credit of 25 percent.
---------------------------------------------------------------------------
\39\ Service Rules for Advanced Wireless Services in the 1.7 GHz
and 2.1 GHz Bands, WT Docket No. 02-353, Report and Order, 18 FCC
Rcd 25162 (2003) (AWS-1 Report and Order).
---------------------------------------------------------------------------
49. Rural Radiotelephone Service. The Commission uses the SBA small
business size standard applicable to cellular and other wireless
telecommunication companies, i.e., an entity employing no more than
1,500 persons.\40\ There are approximately 1,000 licensees in the Rural
Radiotelephone Service, and the Commission estimates that there are
1,000 or fewer small entity licensees in the Rural Radiotelephone
Service that may be affected by the rules and policies adopted herein.
---------------------------------------------------------------------------
\40\ 13 CFR 121.201, NAICS code 517212.
---------------------------------------------------------------------------
50. Wireless Communications Services. This service can be used for
fixed, mobile, radiolocation, and digital audio broadcasting satellite
uses in the 2305-2320 MHz and 2345-2360 MHz bands. The Commission
defined ``small business'' for the wireless communications services
(WCS) auction as an entity with average gross revenues of $40 million
for each of the three preceding years, and a ``very small business'' as
an entity with average gross revenues of $15 million for each of the
three preceding years.\41\ The SBA has approved these definitions.\42\
The Commission auctioned geographic area licenses in the WCS service.
In the auction, which commenced on April 15, 1997 and closed on April
25, 1997, there were seven bidders that won 31 licenses that qualified
as very small business entities, and one bidder that won one license
that qualified as a small business entity.
---------------------------------------------------------------------------
\41\ Amendment of the Commission's Rules to Establish Part 27,
the Wireless Communications Service (WCS), Report and Order, 12 FCC
Rcd 10785, 10879 para. 194 (1997).
\42\ See Letter to Amy Zoslov, Chief, Auctions and Industry
Analysis Division, Wireless Telecommunications Bureau, Federal
Communications Commission, from Aida Alvarez, Administrator, Small
Business Administration, dated December 2, 1998.
---------------------------------------------------------------------------
51. 220 MHz Radio Service--Phase I Licensees. The 220 MHz service
has both Phase I and Phase II licenses. Phase I licensing was conducted
by lotteries in 1992 and 1993. There are approximately 1,515 such non-
nationwide licensees and four nationwide licensees currently authorized
to operate in the 220 MHz Band. The Commission has not developed a
definition of small entities specifically applicable to such incumbent
220 MHz Phase I licensees. To estimate the number of such licensees
that are small businesses, the Commission applies the small business
size standard under the SBA rules applicable to ``Cellular and Other
Wireless Telecommunications'' companies. This category provides that a
small business is a wireless company employing no more than 1,500
persons.\43\ For the census category of ``Cellular and Other Wireless
Telecommunications,'' Census Bureau data for 2002 show that there were
1,397 firms in this category that operated for the entire year.\44\ Of
this total, 1,378 firms had employment of 999 or fewer employees, and
19 firms had employment of 1,000 employees or more.\45\ Thus, under
this category and size standard, the majority of firms can be
considered small.
---------------------------------------------------------------------------
\43\ 13 CFR 121.201, NAICS code 517212.
\44\ U.S. Census Bureau, 2002 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form of
Organization,'' Table 5, NAICS code 517212 (issued Nov. 2005).
\45\ Id. The census data do not provide a more precise estimate
of the number of firms that have employment of 1,500 or fewer
employees; the largest category provided is for firms with ``1000
employees or more.''
---------------------------------------------------------------------------
52. 220 MHz Radio Service--Phase II Licensees. The 220 MHz service
has both Phase I and Phase II licenses. The Phase II 220 MHz service is
subject to spectrum auctions. In the 220 MHz Third Report and Order,
the
[[Page 50071]]
Commission adopted a small business size standard for defining
``small'' and ``very small'' businesses for purposes of determining
their eligibility for special provisions such as bidding credits and
installment payments.\46\ This small business standard indicates that a
``small business'' is an entity that, together with its affiliates and
controlling principals, has average gross revenues not exceeding $15
million for the preceding three years.\47\ A ``very small business'' is
defined as an entity that, together with its affiliates and controlling
principals, has average gross revenues that do not exceed $3 million
for the preceding three years.\48\ The SBA has approved these small
size standards.\49\ Auctions of Phase II licenses commenced on
September 15, 1998, and closed on October 22, 1998.\50\ In the first
auction, 908 licenses were auctioned in three different-sized
geographic areas: Three nationwide licenses, 30 Regional Economic Area
Group (EAG) Licenses, and 875 Economic Area (EA) Licenses. Of the 908
licenses auctioned, 693 were sold.\51\ Thirty-nine small businesses won
373 licenses in the first 220 MHz auction. A second auction included
225 licenses: 216 EA licenses and 9 EAG licenses. Fourteen companies
claiming small business status won 158 licenses.\52\ A third auction
included four licenses: 2 BEA licenses and 2 EAG licenses in the 220
MHz Service. No small or very small business won any of these
licenses.\53\
---------------------------------------------------------------------------
\46\ Amendment of Part 90 of the Commission's Rules to Provide
For the Use of the 220-222 MHz Band by the Private Land Mobile Radio
Service, Third Report and Order, 12 FCC Rcd 10943, 11068-70 paras.
291-295 (1997).
\47\ Id. at 11068 para. 291.
\48\ Id.
\49\ See Letter to Daniel Phythyon, Chief, Wireless
Telecommunications Bureau, Federal Communications Commission, from
Aida Alvarez, Administrator, Small Business Administration, dated
January 6, 1998.
\50\ See generally ``220 MHz Service Auction Closes,'' public
notice, 14 FCC Rcd 605 (WTB 1998).
\51\ See ``FCC Announces It is Prepared to Grant 654 Phase II
220 MHz Licenses After Final Payment is Made,'' public notice, 14
FCC Rcd 1085 (WTB 1999).
\52\ See ``Phase II 220 MHz Service Spectrum Auction Closes,''
public notice, 14 FCC Rcd 11218 (WTB 1999).
\53\ See ``Multi-Radio Service Auction Closes,'' public notice,
17 FCC Rcd 1446 (WTB 2002).
---------------------------------------------------------------------------
53. 700 MHz Guard Band Licenses. In the 700 MHz Guard Band Order,
the Commission adopted size standards for ``small businesses'' and
``very small businesses'' for purposes of determining their eligibility
for special provisions such as bidding credits and installment
payments.\54\ A small business in this service is an entity that,
together with its affiliates and controlling principals, has average
gross revenues not exceeding $40 million for the preceding three
years.\55\ Additionally, a ``very small business'' is an entity that,
together with its affiliates and controlling principals, has average
gross revenues that are not more than $15 million for the preceding
three years.\56\ SBA approval of these definitions is not required.\57\
An auction of 52 Major Economic Area (MEA) licenses commenced on
September 6, 2000, and closed on September 21, 2000.\58\ Of the 104
licenses auctioned, 96 licenses were sold to nine bidders. Five of
these bidders were small businesses that won a total of 26 licenses. A
second auction of 700 MHz Guard Band licenses commenced on February 13,
2001, and closed on February 21, 2001. All eight of the licenses
auctioned were sold to three bidders. One of these bidders was a small
business that won a total of two licenses.\59\
---------------------------------------------------------------------------
\54\ Service Rules for the 746-764 MHz Bands, and Revisions to
Part 27 of the Commission's Rules, Second Report and Order, 15 FCC
Rcd 5299 (2000). Service rules were amended in 2007, but no changes
were made to small business size categories. See Service Rules for
the 698-746, 747-762 and 777-792 MHz Bands, WT Docket No. 06-150,
Revision of the Commission's Rules to Ensure Compatibility with
Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102,
Section 68.4(a) of the Commission's Rules Governing Hearing Aid-
Compatible Telephones, WT Docket No. 01-309, Biennial Regulatory
Review--Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and
Harmonize Various Rules Affecting Wireless Radio Services, WT Docket
03-264, Former Nextel Communications, Inc. Upper 700 MHz Guard Band
Licenses and Revisions to Part 27 of the Commission's Rules, WT
Docket No. 06-169, Implementing a Nationwide, Broadband,
Interoperable Public Safety Network in the 700 MHz Band, PS Docket
No. 06-229, Development of Operational, Technical and Spectrum
Requirements for Meeting Federal, State and Local Public Safety
Communications Requirements Through the Year 2010, WT Docket No. 96-
86, Report and Order and Further Notice of Proposed Rulemaking, 22
FCC Rcd 8064 (2007).
\55\ Id. at 5343 para. 108.
\56\ Id.
\57\ Id. At 5343 para. 108 n.246 (for the 746-764 MHz and 776-
704 MHz bands, the Commission is exempt from 15 U.S.C. 632, which
requires Federal agencies to obtain Small Business Administration
approval before adopting small business size standards).
\58\ See ``700 MHz Guard Bands Auction Closes: Winning Bidders
Announced,'' public notice, 15 FCC Rcd 18026 (2000).
\59\ See ``700 MHz Guard Bands Auctions Closes: Winning Bidders
Announced,'' public notice, 16 FCC Rcd 4590 (WTB 2001).
---------------------------------------------------------------------------
54. Upper 700 MHz Band Licenses. The Commission released a Report
and Order authorizing service in the Upper 700 MHz band.\60\ An auction
for these licenses, previously scheduled for January 13, 2003, was
postponed.\61\
---------------------------------------------------------------------------
\60\ Service Rules for the 746-764 and 776-794 MHz Bands, and
Revisions to Part 27 of the Commission's Rules, Second Memorandum
Opinion and Order, 16 FCC Rcd 1239 (2001). Service rules were
amended in 2007, but no changes were made to small business size
categories. See Service Rules for the 698-746, 747-762 and 777-792
MHz Bands, WT Docket No. 06-150, Revision of the Commission's Rules
to Ensure Compatibility with Enhanced 911 Emergency Calling Systems,
CC Docket No. 94-102, Section 68.4(a) of the Commission's Rules
Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309,
Biennial Regulatory Review--Amendment of Parts 1, 22, 24, 27, and 90
to Streamline and Harmonize Various Rules Affecting Wireless Radio
Services, WT Docket 03-264, Former Nextel Communications, Inc. Upper
700 MHz Guard Band Licenses and Revisions to Part 27 of the
Commission's Rules, WT Docket No. 06-169, Implementing a Nationwide,
Broadband, Interoperable Public Safety Network in the 700 MHz Band,
PS Docket No. 06-229, Development of Operational, Technical and
Spectrum Requirements for Meeting Federal, State and Local Public
Safety Communications Requirements Through the Year 2010, WT Docket
No. 96-86, Report and Order and Further Notice of Proposed
Rulemaking, 22 FCC Rcd 8064 (2007).
\61\ See ``Auction of Licenses for 747-762 and 777-792 MHz Bands
(Auction No. 31) Is Rescheduled,'' public notice, 16 FCC Rcd 13079
(WTB 2003).
---------------------------------------------------------------------------
55. Lower 700 MHz Band Licenses. The Commission adopted criteria
for defining three groups of small businesses for purposes of
determining their eligibility for special provisions such as bidding
credits.\62\ The Commission has defined a small business as an entity
that, together with its affiliates and controlling principals, has
average gross revenues not exceeding $40 million for the preceding
three years.\63\ A very small business is defined as an entity that,
together with its affiliates and controlling principals, has average
gross revenues that are not more than $15 million for the preceding
three years.\64\ Additionally, the Lower 700 MHz Band has a third
category of small business status that may be claimed for Metropolitan/
Rural Service Area (MSA/RSA) licenses. The third category is
entrepreneur, which is defined as an entity that, together with its
affiliates and controlling principals, has average gross revenues that
are not more than $3 million for the preceding three years.\65\ The SBA
has approved these small size standards.\66\ An auction of 740 licenses
(one license in each of the 734 MSAs/RSAs and one license in each of
the six Economic Area Groupings (EAGs)) commenced on August 27, 2002,
and closed on
[[Page 50072]]
September 18, 2002. Of the 740 licenses available for auction, 484
licenses were sold to 102 winning bidders. Seventy-two of the winning
bidders claimed small business, very small business or entrepreneur
status and won a total of 329 licenses.\67\ A second auction commenced
on May 28, 2003, and closed on June 13, 2003, and included 256
licenses: 5 EAG licenses and 476 CMA licenses.\68\ Seventeen winning
bidders claimed small or very small business status and won sixty
licenses, and nine winning bidders claimed entrepreneur status and won
154 licenses.\69\
---------------------------------------------------------------------------
\62\ See Reallocation and Service Rules for the 698-746 MHz
Spectrum Band (Television Channels 52-59), Report and Order, 17 FCC
Rcd 1022 (2002).
\63\ Id. at 1087-88 para. 172.
\64\ Id.
\65\ Id. at 1088 para. 173.
\66\ See Letter to Thomas Sugrue, Chief, Wireless
Telecommunications Bureau, Federal Communications Commission, from
Aida Alvarez, Administrator, Small Business Administration, dated
August 10, 1999.
\67\ See ``Lower 700 MHz Band Auction Closes,'' public notice,
17 FCC Rcd 17272 (WTB 2002).
\68\ See ``Lower 700 MHz Band Auction Closes,'' public notice,
18 FCC Rcd 11873 (WTB 2003).
\69\ Id.
---------------------------------------------------------------------------
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
56. The only reporting or recordkeeping costs to be incurred are
administrative costs to ensure that an entity's practices are in
compliance with the rule. The only compliance requirement is that CMRS
carriers must provide automatic roaming to any requesting
technologically compatible CMRS carrier outside of the requesting CMRS
carrier's home market on reasonable and non-discriminatory terms and
conditions. This rule applies to CMRS carriers that offer real-time,
two-way switched voice or data service over digital network that is
interconnected with the public switched network and utilize an in-
network switching facility that enables the provider to reuse
frequencies and accomplish seamless hand-offs of subscriber calls.\70\
---------------------------------------------------------------------------
\70\ See Report and Order, supra, paras. 28-29.
---------------------------------------------------------------------------
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered
57. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): (1)
The establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.\71\
---------------------------------------------------------------------------
\71\ See 5 U.S.C. 603(c).
---------------------------------------------------------------------------
58. In this Report and Order, the Commission clarifies that
automatic roaming is a common carrier obligation for CMRS carriers,
requiring them to provide roaming services to other carriers upon
reasonable request and on a just, reasonable, and non-discriminatory
basis pursuant to Sections 201 and 202 of the Communications Act. In
adopting this rule, the Commission determined that when a reasonable
request is made by a technologically compatible CMRS carrier, a host
CMRS carrier must provide automatic roaming to the requesting carrier
outside of the requesting carrier's home market, consistent with the
protections of Sections 201 and 202 of the Communications Act.
59. In the Report and Order, the Commission finds that the scope of
automatic roaming services includes only services offered by CMRS
carriers that are real-time, two-way switched voice or data services
that are interconnected with the public switched network and utilize an
in-network switching facility that enables the provider to reuse
frequencies and accomplish seamless hand-offs of subscriber calls. In
addition, the Commission determines that it would serve the public
interest to extend automatic roaming obligation to push-to-talk and
text messaging (SMS). However, the Commission declines to adopt a rule
extending the automatic roaming obligation beyond that to offerings
that do not fall within the scope of the automatic roaming services'
definition, such as non-interconnected services or features or services
that are classified as information services or to services that are not
CMRS.\72\
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\72\ Appropriate Regulatory Treatment for Broadband Access to
the Internet Over Wireless Networks, Declaratory Ruling, FCC No. 07-
30, paras. 11-12 (rel. Mar. 23, 2007) (``Wireless Broadband Internet
Access Declaratory Ruling'').
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60. In response to the Reexamination NPRM, some of the commenters
requested that the Commission cap the rates that a carrier may charge
other carriers for automatic roaming service based on some benchmark of
retail rates.\73\ Some of these commenters have also submitted economic
analyses in support of their proposals.\74\ Other commenters oppose any
rate regulation and, in turn, have submitted their own economic
analyses disputing the theory and evidence used to justify the
imposition of rate regulation.\75\ In the Report and Order, the
Commission declines to impose a price cap or any other form of rate
regulation on the fees carriers pay each other when one carrier's
customer roams on another carrier's network. The Commission believes
that the rates individual carriers pay for automatic roaming services
should be determined in the marketplace through negotiations between
the carriers, subject to the statutory requirement that any rates
charged be reasonable and non-discriminatory.
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\73\ See Leap Comments at 17, 19-20 (recommending that, in
geographic areas where there are three or fewer facilities-based
carriers from which the carrier seeking automatic roaming service
could obtain such service, the Commission prohibit a facilities-
based carrier from charging rates for automatic roaming that exceed
the carrier's average retail revenue per minute for that area). See
also SouthernLINC Comments at 49 (proposing that the Commission
establish a presumption that a carrier's roaming rates in a region
are unreasonable if they exceed the lowest prevailing per-minute
retail rates that it charges its own subscribers in that region).
\74\ See, e.g., Leap Comments, Attachment A (ERS Group,
Wholesale Pricing Methods of Nationwide Carriers Providing
Commercial Mobile Radio Services: An Economic Analysis);
SouthernLINC Comments, Attachment B (R. Preston McAfee, The
Economics of Wholesale Roaming in CMRS Markets); SouthernLINC Reply
Comments, Attachment B (R. Preston McAfee, The Economics of
Wholesale Roaming in CMRS Markets: Reply Comments); Leap Reply
Comments, Attachment A (David S. Sibley, The Existence of Regional,
Technology-Specific Wholesale Antitrust Markets for Roaming
Services); Leap Reply Comments, Attachment B (ERS Group, A Further
Analysis of the Wholesale Pricing Methods of Nationwide Carriers
Providing Commercial Mobile Radio Service).
\75\ See, e.g., Rosston/Sprint Nextel Comments; Rosston/Sprint
Nextel Reply Comments; Hazlett/Cingular Reply Comments; Furchtgott-
Roth/T-Mobile Reply Comments.
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61. The Commission reiterates that the general policy regarding
CMRS services is to allow competitive market forces, rather than
regulations, to promote the development of wireless services. On
balance, taking into consideration the concerns raised in the record by
certain CMRS carriers \76\ and its preference for allowing competitive
market forces to govern rate and rate structures for wireless services,
the Commission expressly declines to impose any corresponding rate
regulation of automatic roaming services.
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\76\ See, e.g., Cingular Comments at i, 18-30; NDNC Comments at
3; Nextel Partners Comments at 5-6.
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62. In the Reexamination NPRM, the Commission sought comment on
whether a carrier should be required to enter into an automatic roaming
arrangement on a nondiscriminatory basis with a facilities-based-
competitor in the same market. In the Report and Order, the Commission
determines that the automatic roaming obligation does not include an
in-market or home roaming requirement. The Commission finds that an
automatic roaming request in the home area of a requesting CMRS
carrier, the area where the requesting
[[Page 50073]]
CMRS carrier has the spectrum to compete directly with the would-be
host carrier, does not serve public interest goals of encouraging
facilities-based service and supporting consumer expectations of
seamless coverage when traveling outside the home area.
63. In the Reexamination NPRM, the Commission sought comment on
access to push-to-talk, dispatch, or other data roaming. Some carriers
advocate that the Commission should adopt an automatic roaming rule
that requires carriers to permit roaming access to all technical
features of their systems, and/or require carriers to make the same
features accessible to all of their roaming partners (e.g., push-to-
talk, dispatch, text messaging (SMS) or other data roaming services).
Based on the record, in the Report and Order, the Commission finds that
it would serve public interest to extend automatic roaming obligations
to push-to-talk and SMS. However, the Commission declines to adopt a
rule extending the automatic roaming obligation beyond that to
offerings that do not fall within the scope of the automatic roaming
services' definition, such as non-interconnected services or features.
With respect to push-to-talk and SMS, the Commission finds that such
offerings are typically bundled as a feature on the handset with other
CMRS services, such as real-time, two-way switched mobile voice or
data, which are interconnected with the public switched network. Thus,
consumers consider push-to-talk and SMS as features that are typically
offered as adjuncts to basic voice services, and expect the same
seamless connectivity with respect to these features and capabilities
as they travel outside their home network service areas.
64. With respect to non-interconnected data service, the Commission
finds that it is not in the public interest at this time to impose an
automatic roaming obligation. In the absence of a clear showing in the
record that it would serve the public interest, the Commission believes
that open access to the non-interconnected features of a competitor's
network might undercut incentives to differentiate products and could
chill innovation. It may also adversely affect business decisions to
build out facilities for facilities-based competition and reduce the
incentives to access the spectrum through other means such as initial
spectrum licensing or secondary markets. For these reasons, the
Commission declines to impose an automatic roaming requirement on non-
interconnected features, such as stand alone dispatch, at this time.
65. In the Report and Order, the Commission also declines to impose
an affirmative obligation on CMRS carriers to post their roaming rates.
The Commission notes that roaming agreements are generally confidential
and filing them would impose administrative costs on the carriers. In
light of the adoption of an automatic roaming rule, the Commission
finds that the available remedies for redress are sufficient to address
disputes that may arise. Therefore, the Commission finds it unnecessary
to burden CMRS carriers by requiring them to file roaming agreements.
F. Report to Congress
66. The Commission will send a copy of the Report and Order,
including this FRFA, in a report to be sent to Congress and the
Government Accountability Office pursuant to the Congressional Review
Act.\77\ In addition, the Commission will send a copy of the Report and
Order, including the FRFA, to the Chief Counsel for Advocacy of the
SBA. A copy of the Report and Order and the FRFA (or summaries thereof)
will also be published in the Federal Register.\78\
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\77\ See 5 U.S.C. 801(a)(1)(A).
\78\ See 5 U.S.C. 604(b).
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Ordering Clauses
67. Accordingly, it is ordered that, pursuant to the authority
contained in Sections 1, 4(i), 201, 202, 251(a), 253, 303(r), and
332(c)(1)(B) of the Communications Act of 1934, as amended, 47 U.S.C.
151, 154(i), 201, 202, 251(a), 253, 303(r), and 332(c)(1)(B), and
Section 1.425 of the Commission's rules, 47 CFR 1.425, this Report and
Order and FNPRM is hereby adopted.
68. It is further ordered that Sections 20.3 and 20.12 of the
Commission's rules are amended as specified in Appendix A, and such
rule amendments shall be effective 60 days after the date of
publication of the text thereof in the Federal Register.
69. It is further ordered that the Joint Petition for Commission
Inquiry Pursuant to Section 403 of the Communications Act filed by
AIRPEAK Communications, LLC, Airtel Wireless LLC, Cleveland Unlimited,
Inc., Leap Wireless International, Inc., MetroPCS Communications, Inc.,
Punxsutawney Communications, Rural Telecommunications Group, Inc., and
Southern Communications Services, Inc. d/b/a SouthernLINC Wireless, on
April 25, 2006 is hereby denied.
70. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Report and Order and the FNPRM, including the Final
Regulatory Flexibility Analysis and the Initial Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
List of Subjects in 47 CFR Part 20
Communications common carriers, Communications equipment, Radio.
Federal Communications Commission.
William F. Caton,
Deputy Secretary.
Final Rules
0
For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR part 20 as follows:
PART 20--COMMERCIAL MOBILE RADIO SERVICES
0
1. The authority citation for part 20 continues to read as follows:
Authority: 47 U.S.C. 154, 160, 251-254, 303 and 332 unless
otherwise noted.
0
2. Section 20.3 is amended by adding the following terms alphabetically
to read as follows:
Sec. 20.3 Definitions.
* * * * *
Automatic Roaming. With automatic roaming, under a pre-existing
contractual agreement between a subscriber's home carrier and a host
carrier, a roaming subscriber is able to originate or terminate a call
in the host carrier's service area without taking any special actions.
* * * * *
Home Carrier. For automatic roaming, a home carrier is the
facilities-based CMRS carrier with which a subscriber has a direct
contractual relationship. A home carrier may request automatic roaming
service from a host carrier on behalf of its subscribers.
Home Market. For automatic roaming, a CMRS carrier's home market is
defined as any geographic location where the home carrier has a
wireless license or spectrum usage rights that could be used to provide
CMRS.
Host Carrier. For automatic roaming, the host carrier is a
facilities-based CMRS carrier on whose system a subscriber roams when
outside its home carrier's home market.
* * * * *
Manual Roaming. With manual roaming, a subscriber must establish a
relationship with the host carrier on whose system he or she wants to
roam in order to make a call. Typically, the
[[Page 50074]]
roaming subscriber accomplishes this in the course of attempting to
originate a call by giving a valid credit card number to the carrier
providing the roaming service.
* * * * *
0
3. Section 20.12 is amended by revising paragraphs (a) and (c) and
adding paragraph (d) as follows:
Sec. 20.12 Resale and roaming.
(a)(1) Scope of Manual Roaming and Resale. Paragraph (c) of this
section is applicable to providers of Broadband Personal Communications
Services (part 24, subpart E of this chapter), Cellular Radio Telephone
Service (part 22, subpart H of this chapter), and specialized Mobile
Radio Services in the 800 MHz and 900 MHz bands (included in part 90,
subpart S of this chapter) if such providers offer real-time, two-way
switched voice or data service that is interconnected with the public
switched network and utilizes an in-network switching facility that
enables the provider to re-use frequencies and accomplish seamless
hand-offs of subscriber calls. The scope of paragraph (b) of this
section, concerning the resale rule, is further limited so as to
exclude from the requirements of that paragraph those Broadband
Personal Communications Services C, D, E, and F block licensees that do
not own and control and are not owned and controlled by firms also
holding cellular A or B block licenses.
(2) Scope of Automatic Roaming. Paragraph (d) of this section is
applicable to CMRS carriers if such carriers offer real-time, two-way
switched voice or data service that is interconnected with the public
switched network and utilizes an in-network switching facility that
enables the carrier to re-use frequencies and accomplish seamless hand-
offs of subscriber calls. Paragraph (d) of this section is also
applicable to the provision of push-to-talk and text-messaging service
by CMRS carriers.
* * * * *
(c) Manual Roaming. Each carrier subject to paragraph (a)(1) of
this section must provide mobile radio service upon request to all
subscribers in good standing to the services of any carrier subject to
paragraph (a)(1) of this section, including roamers, while such
subscribers are located within any portion of the licensee's licensed
service area where facilities have been constructed and service to
subscribers has commenced, if such subscribers are using mobile
equipment that is technically compatible with the licensee's base
stations.
(d) Automatic Roaming. Upon a reasonable request, it shall be the
duty of each host carrier subject to paragraph (a)(2) of this section
to provide automatic roaming to any technologically compatible home
carrier, outside of the requesting home carrier's home market, on
reasonable and nondiscriminatory terms and conditions.
[FR Doc. E7-17122 Filed 8-29-07; 8:45 am]
BILLING CODE 6712-01-P